The Brady List can be used as a tool to overcome prosecutorial and judicial misconduct in cases of wrongful conviction. It is useful to recall a few specifics about Brady v. Maryland in order to help understand the strengths for those wrongfully convicted as well as the vulnerabilities of the powers-that-be.
- Brady is not about 'law enforcement accountability' or 'police misconduct'. It is merely a record of material that must be disclosed to defendants in the interests of justice and fair trials.
- Brady is about evidence. In fact, The Brady List is an example of a proactive disclosure evidence handling system that also happens to be public-facing for the purposes of accessibility to Pro Se/Pro Per defendants. Cases and jurisdictions subject to expedited protocols [infractions, traffic, plea bargains] do not relieve the prosecutor of their obligations under the Brady doctrine.
- Brady creates a Constitutional obligation upon all prosecutors in all criminal cases to disclose exculpatory evidence, specifically including impeachment and mitigating evidence. Brady states that a prosecutor must disclose "any information about all individuals upon whose testimony will be relied."
- Brady obligations upon prosecutors specifically includes 'expedited' protocols: plea bargains, infractions, traffic tickets, etc..
- Brady actively prohibits the application of discretion by law enforcement, prosecutors, and judges. Brady states "in the event of a question arising about the materiality of the evidence in question, the evidence must be viewed in the light most favorable to the defendant."
- Each criminal case has an official record; but, not all evidentiary disclosures are in the official record; so, the original case file with the full list of disclosures will be required to determine whether or not the prosecutor satisfied their disclosure requirements with regard to police misconduct and use-of-force records. Know ahead of time: most prosecutors do not disclose nearly enough evidence to be in compliance.
- Departmental policies of prosecutors and/or law enforcement do not relieve the prosecutor of their Constitutional obligations, even if they claim that to be so. In fact, policies of this nature are a solid indicator that the refusal to disclose is in fact intentional, malicious, and systemic.
- Brady is perpetual: the obligations under Brady, upon the prosecutor, to disclose any and all exculpatory evidence under the premise that the Justice System will go to great extremes to avoid convicting a single innocent person. By example: if and individual is convicted of a crime and the prosecutor later becomes aware of another individual having actually committed a crime, the prosecutor is obligated to prosecute the second person and provide for the evidence for the exoneration of the first person. This does not always happen, but that is where the obligation lies.
- Brady is retroactive: For example: check out this article on Officer Chauvin being convicted for the murder of George Floyd: Derek Chauvin is a Brady Cop: Now What?
Now that we have been reminded about the details of Brady, let's talk about the impact of the Brady List upon the accountability of the criminal justice system.
- All data on the Brady List is time date stamped allowing for 'what should have been known; and, when it should have been known'.
- All data on the Brady List is severally entered and jointly analyzed by organization and jurisdiction.
- Proof of prosecutorial and judicial misconduct does not come from the Brady List; but, it is comparable to the official record and files of a case. Most misconduct is demonstrable by the comparison of the two.
- File a complaint against police, prosecutors, and/or judges under the concept of the court of public record.
- Brady disclosure obligations do not require, nor rely upon, a finding, ruling, or discretionary determination of guilt or innocence.
- Get the Discovery. Brady requires certain material evidence be disclosed automatically. The obligation is on the prosecutor; and, if they fail [in any way] it is demonstrable as active, intentional, and malicious. The disclosure must contain either: a) records of police misconduct and use-of-force for every single officer involved; or, b) a confirmation that no such records exist. If the prosecutor fails or refuses in any way - move for an immediate dismissal.
- Prepare for an Appeal. If a defendant gets stonewalled with regard to Brady disclosures, the Court of Appeals is far more likely to identify and act on the judicial and prosecutorial misconduct at the trial court level.
- Keep the Case File. Brady is both perpetual and retroactive; so, if an officer is ever proven to be untruthful or is convicted of a crime of moral turpitude - then that is evidence that their testimony in the current case can be impeached. This evidence will also strongly support expungement efforts.
- Compare the Discovery to the Current Record. As the Brady disclosures must include records of police misconduct and use-of-force records, check the officers file [even years later] for evidence that can be used as impeachment evidence in requesting a new trial. An officers name appearing on the Brady List years after a conviction is still very much applicable to a past case.
- Check Other Cases by the Same Prosecutor. 'Problem prosecutors' rarely commit the misconduct only once. It is far more likely that an appeal, request for a new trial, or an expungement request would be granted if the prosecutor has been identified as having committed the misconduct multiple times or that the prosecutor's office has adopted policies that are inherently flawed.
In all cases: dismissal is the goal, not revenge. Brady is about fair trials. If the trial is not fair than their can be no justice.
- Prosecutorial misconduct is rampant. Prosecutors rarely commit prosecutorial misconduct only once, inadvertently, or by accident. While this may make you angry or exasperated, there is good news: the more you look into the history of a prosecutor - the more likely you will find something that can have them disbarred.
- Don't Defend, Attack the Prosecutor. There are rules to being a prosecutor. One of them is Rules of Professional Conduct 3.8(g): Special Responsibilities of a Prosecutor. Look it up; learn it; and, know: if/when the prosecutor fails - they can be disciplined up to and including being disbarred by the State Bar which means the will never practice law again.
If you run into a 'problem judge': attack their egos; embarrass them in front of their peers; and, put their history of bias on display.
- Judges have egos. Egos do not belong on the bench. Crush them. Remind the judge that they will be held accountable for their actions.
- Judges have bosses. No judge can go unchallenged; and, judges that review other judges behavior always want themselves to appear even more unbiased and committed to justice. Point out the justice at the lower level and the higher judge will take the opportunity to exalt themselves.
- Judges were prosecutors. More than 90% of judges at the District and Superior Court level have a background in prosecution. That means they also have cases in their own history that can demonstrate their own bias via prosecutorial misconduct to support a claim of judicial misconduct resulting in active, intentional, and malicious behavior.
All politicians are just politicians. They lie and then they posture, and then they beg. Hold them accountable. Make them commit to fair trials and transparency - then, remind them every day of their commitments. The good ones will not run from disclosures.
#Transparency = #Accountability
Past the level of individual involvement and action, their exist groups of people that have united behind a common goal... Justice. These groups have taken many forms and have also subdivided based on any number of factors. We need not worry about what divides them; but, we can facilitate what drives them.
This is a list or 'workflow' or just some ideas about how groups of regular individuals can come together to accomplish great things in criminal justice reform.
Organize & Mobilize
- Social Media
- eMail Campaigns
Complaints by them selves do very little; but, organized complaints en masse are impossible to ignore; so, if you have a single issue...file a complaint; but, if you have a 'problem' officer, prosecutor, or judge - do some research. If they are treating your case badly, chances are they have done this before and they will do it again.
I cannot emphasize this enough: make friends with the Public Defender! They now who the problem individuals are; and they will have direct access to the files necessary to prove the misconduct is ongoing, intentional, systemic, and malicious.
Use their power against them: if you see something, say something!
Publish & Distribute the Results
At the bottom of each organization and state's Brady List there are some buttons - use them.
PDF - this button produces a time/date stamped copy of the list you are viewing. This can be printed and emailed. It demonstrated what was known about who and when.
RSS - this button can be integrated into a 'feed' program that will notify users whenever there is a new addition or edit to the List.
Vote, vote, and then vote again!
Just like your car or home needs maintenance, so does our government.
There are plenty of 'good' candidates out there, and so-called progressive prosecutors are now everywhere; but, none of them have fully embraced their obligation to the people. They are still functioning in the realm of zero accountability; but, we are now in the information age and we can keep track of their conveniently forgotten campaign promises. If they promise to be transparent - recall them, even if they seem to moving in the right direction. You, me, and our loved ones do not have the time to wait for them to come to the conclusion that they need to fulfill their obligations.